Air Pollution:

Sen. Tom Carper explores chances for Clean Air Act compromises on the Hill

Sen. Tom Carper, the top Democrat on the Environment and Public Works' Clear Air Subcommittee, talks with E&E Daily senior reporter Darren Samuelsohn about the chances for a compromise agreement in the Clean Air Act debate now in full bloom on Capitol Hill. Carper says he expects Bush's Clear Skies initiative to be met with a 9-9 committee vote later this month should the bill's sponsors not agree to some degree of a compromise on the issue of mandatory carbon dioxide controls for power plants. Also, Carper says he is considering pushing his plan as an amendment during the Senate EPW Committee markup expected Feb. 16.

Transcript

Colin Sullivan: Welcome, I'm Colin Sullivan. Today we're joined by Senator Tom Carper, a Democrat from Delaware and Darren Samuelsohn, senior reporter for E&E Daily and Greenwire to discuss the President's Clear Skies Initiative and its prospects on Capitol Hill this year. Senator Carper thanks for being here.

Senator Tom Carper: Thanks for letting me come.

Colin Sullivan: Senator, yesterday the chairman of the Senate Clean Air Subcommittee, George Voinovich, set out a pretty aggressive timetable for moving Clear Skies. Essentially saying he's fed up and wants a bill within six months or earlier. Can you talk about your talks with Senator Voinovich to build a compromise on Clear Skies?

Senator Tom Carper: We've not really talked much this year. We did talk a day or two ago about trying to set aside some quality time on his schedule and my schedule to see if there's some common ground. George and I have been friends for a long time. We were governors together for almost eight years, he was chairman, I was vice chairman, I succeeded him as chairman. We worked on national nonprofits together. When he was chairman, I was vice chairman. Now we're on this Clean Air Subcommittee, he's chairman again and I'm stuck as his second banana. But we've always worked well together and have a good friendship and my hope is that that long experience and trust that we have for one another and that friendship will help us to maybe narrow the partisan divide here. I'm stuck though, if you look at the compromises, major compromises that have been reached lately, the 9/11 commission, great working relationship between Susan Collins and Joe Lieberman who helped to broker the compromise, presidential flexibility, presidential leadership and congressional flexibility and leadership as well. You look at class-action reform, asbestos litigation reform where I'm very much involved, we work on them for years, but again you're seeing presidential leadership, presidential flexibility, congressional leadership, congressional flexibility and a couple of leaders, senior guys who actually trust each other and work together to help broker the compromise. We need a similar approach on clean air.

Colin Sullivan: Senator Voinovich seemed to indicate that if you and he could not get a compromise the bill might not have much of a future. Were you surprised by his tone? He was pretty aggressive yesterday.

Senator Tom Carper: No, he's a passionate guy. He cares, he really cares about the economy, he cares about a lot of things, but one of the things he cares most about is the economy of Ohio, which was very strong and vibrant for much of the last century and under his leadership did very well. He's seen an incredible exodus of manufacturing jobs and that troubles him deeply. He's concerned about the price of natural gas and what that has done to his manufacturing businesses, agricultural businesses and he comes at this issue with that sort of a mindset and I can understand where is coming from. He's an old governor. I care a lot about the economy too and job creation and job preservation.

Darren Samuelsohn: Yesterday he indicated that he was wanting to compromise, but he did sort of layout one thing that, you know, was a deal breaker and that was carbon dioxide. You have a legislation that you introduced last year putting mandatory caps on carbon dioxide and he sort of, he said, no mandatory caps, that's one thing that's just a no go. So I'm wondering, you know, you're talking about compromise, he's talking about compromise, but pretty much the one thing that you guys need to find some sort of an agreement on, it doesn't look like there's any room for compromise.

Senator Tom Carper: You know, I never focused all that much on global warming, and I knew it was an issue, but I never really paid it a whole lot of attention. In 1998, I think it was, I was governor of Delaware and we were having a big annual awards ceremony called "The Commonwealth Awards" where some of the most remarkable people in the world come to Delaware, to be honored and receive, I think, a $50,000 cash grant for the work that they're doing. Like last year, Christopher Reeve, Meryl Streep were there and each year we honor somebody in science. About 1998 a husband and wife research team came from Ohio State and they were honored for the work they'd done for some 20 years on measuring, among other things, the disappearing ice caps, snow caps at the top of some of the tallest mountains in the world. They basically presented to us their proof that these snow caps were disappearing over time and if we didn't do something about it we'd rue the day. What we're trying to do through the legislation that Senator Alexander and Senator Chafee and Senator Gregg have introduced is to say, "Let's not wait until it's too late, let's provide some certainty to utilities and to us as consumers, let's do this in a way that doesn't push coal out of business." You know, I'm from West Virginia, I'm a coal state guy, so I want to make sure we don't, we move to things like coal gasification, so we can use that as a natural resource producer in an environmentally friendly way.

Darren Samuelsohn: There's pressure on Senator Voinovich though to deal with the issue of carbon dioxide. Two of the largest utilities in his state, American Electric Power and Cinergy, have both indicated that on some degree, they believe that carbon dioxide controls eventually will come. You just mentioned, you know, some folks from Ohio State as well, I mean, do you see Senator Voinovich moving away from the, moving, I guess, in favor of mandatory caps? He certainly hasn't given any indication. Senator Inhofe yesterday and Senator Bond all said pretty much the same thing that they think that something like your bill would ruin the United States economy, pushing people away from coal to natural gas.

Senator Tom Carper: Well it a, the EPA's own analysis doesn't suggest anything of the kind. It would raise the price of electricity, I think, by maybe a cent and a half per kilowatt hour. We are told that the average utility bill would go up maybe $1.20 per month, so I don't think that's going to ruin the economy. The shift from coal to electricity under my legislation, coal would drop from maybe 50 percent to 48 percent. Twenty years from now there'd be very little difference. So I think those are sort of red herrings. If you think about it, this president, President Bush, initially did not favor the idea of creating a Department of Homeland Security, that was Joe Lieberman's idea, but Bush soon became a reality and he, the President finally claimed it as his own.

Darren Samuelsohn: Bush actually supported, in the 2000 presidential campaign, the mandatory carbon dioxide caps and then in 2001, shortly after he came in office, changed his position on that.

Senator Tom Carper: In the last campaign, the last presidential campaign, he accused John Kerry of being a flip-flopper. And now he's flipped once from being in favor of doing something on carbon as a candidate and then as a president not.

Darren Samuelsohn: So you think he's going to flip back?

Senator Tom Carper: So he can flip back now and he'll be like consistent with his pre-presidential position.

Darren Samuelsohn: Let me ask you this, in terms of administration leadership, a couple days ago, as the Republicans are clearly trying to build up momentum to move this bill, they want a mark up on February 16, one of the things that Senator Inhofe's staff was pointing to is that President Bush has been able to move brownfields and forest fire reduction legislation over the course of his first term. Two issues that people were skeptical that he could mount enough of a coalition to move these two bills, but he was able to and they think that Clear Skies would be the third example. Presidential leadership at this point has been, for Clear Skies pretty, you know, aggressive, I was wondering, do you think that the two examples that I just gave, brownfields and forest fires are examples where Clear Skies he might be able to coalesce and bring together enough people to --

Senator Tom Carper: No, there are a lot of us who wanted to do brownfields. Christie Whitman, it was one of first things she wanted to do out of the box and I said, "Right on and we'll work with you." And Barbara Boxer and a whole bunch of, Jim Jeffords and a lot of folks on our side were pleased to engage. And I think I find that folks from the Northeast, Democrats from the great Northwest rather, were able to work with the administration to hammer something out. Not that everybody liked, but there's a lot of bipartisan and Democratic involvement, and we need the same kind of thing here. Class-action reform, asbestos litigation reform, there's no way you can pass those without Democrats' support, no way. And we've had an opportunity to be very much fully participatory, both sides of the aisle, to hammer out compromises. I think class action will probably pass next month, and my hope is by the end of this spring asbestos litigation reform will pass. The administration didn't say, "My way or the highway." And if they want to take that approach on this occasion we'll end up with a traffic jam the likes of which made getting into Washington, D.C., this morning look like a day at the beach.

Colin Sullivan: What about the strategy? Did you question the strategy of trying to move Clear Skies through the Senate first rather than going through the House? Or is it a dead duck without going through the Senate in the first place?

Senator Tom Carper: Well, I think the reason may be, one of the reason why there's some impetus to move it through quickly, is I believe there was a negotiation or discussion between Senator Inhofe and the White House and maybe with the EPA, about getting EPA to hold off in making regulatory changes and implementing Clear Skies in a regulatory fashion as opposed to implementing it through legislation. I think the deal may have been, or agreement or understanding, might have been that we had until sometime in March to move legislation and maybe if not, then the administration will take regulatory steps.

Darren Samuelsohn: On the strategy for Clear Skies, there's going to be a mark up in mid-February. I'm wondering, are you going to offer your bill that you introduced last year as an amendment during that committee mark up?

Senator Tom Carper: I'd expect to. It's not something we've, we haven't figured out what strategy we're going to pursue. Right now I look forward to sitting down with Senator Voinovich.

Darren Samuelsohn: Do you expect to have a meeting before the mark up?

Senator Tom Carper: Oh sure, sure, sure. And I'd also say that, and I talked to you earlier about presidential flexibility on some of these other issues and willingness to reach across the aisle on 9/11, creating a Department of Homeland Security, tort issues. If I were the chairman of the committee, and I'm not and I don't know that I ever will be, but if I were the chairman of the committee I would literally invite Democrats and Republicans who were interested in the issue to come and sit with me or I'd go sit with them and say, "Where do you think we can find the common ground?" I would literally reach out and try to be inclusive. It's interesting, because I read statements from the staff of the chairman who suggests that all, they expect everybody in their committee to vote for Clear Skies in order to get to the floor and offer our amendments. That, no one's ever said anything like that to me. Which is just, it's just, it's strange.

Darren Samuelsohn: The count that we've done on the bill and interviews with senators, Senator Baucus was indicating he wouldn't support Clear Skies, Senator Chafee would not support Clear Skies.

Senator Tom Carper: Senator Chafee was very strong in our hearing this week on that point that they needed to do something on global warming.

Darren Samuelsohn: So you're saying, you're headed toward a 9-9 tie is what it looks like right now.

Senator Tom Carper: Um-hmm.

Darren Samuelsohn: What happens there? I mean, you know, you're not the chairman, but what do you think is going through the chairman's head at this point? I mean, do they try and move the bill through Rule 14, procedurally move Clear Skies out of committee, even with a tie, and try and take it up on the floor?

Senator Tom Carper: The discussions we've had between our leadership and the Republican Senate leadership on class action may be --

Darren Samuelsohn: An example?

Senator Tom Carper: Maybe an example. I suggested to Senator Frist and to Senator McConnell that we don't, so-called Rule 14 the class-action bill. But I'd just take it off the calendar and put it right on the floor. Take it through the committee, regular order. Harry Reid, Senator Reid, our Democratic leader, believes in regular order, and he's had a good discussion with Republican leadership, that's what they're gonna do. Next bill, class-action reform legislation, goes to the Judiciary Committee, they'll vote on it, people can offer amendments and hopefully they'll report it out for Senate consideration in a week or so after that. That's really a good template, and I suspect that that's the approach our leadership will encourage the Republicans to take and if they do that we can make progress on, frankly, on a variety of fronts.

Colin Sullivan: Speaking of class action, if we can talk about that for a second. Some environmentalists don't support your approach to class actions, specifically, because you're shifting a lot of oversight from state to federal courts. What is your answer to that and can you talk about your support for that bill?

Senator Tom Carper: Sure. Class-action litigation is not a bad thing. It actually is, I think, a good thing in many instances. The class-action legislation, class-action litigation occurs when little people, and in many cases, are harmed by companies who take advantage of them, who sell them a product that's deficient or faulty in some way. It may not lead to death or maiming of the victims, but there's a material loss that they sustain. Collectively the loss is rather large. Our belief is that when little people are hurt by big companies, or even not so big companies, they should have the right to be made whole, the little people, and to band together in class-action litigation. The problem is this, in recent years, too many of the national class-action cases, which involve plaintiffs and maybe defendants in many states, end up not in a federal or national court, but they end up in a local court, like a county court in Madison County, Illinois, or Jefferson County down in the southern part of the United States, where the judiciary's are oftentimes elected locally and where it's hard for an out-of-state defendant to get a fair trial and when the defendant is, when the class is certified in those local courts with a local judiciary that has a history of being partial to plaintiff's lawyers, plaintiffs themselves, the major company, the defendant, will settle. Who makes out? Well, well, the plaintiff's attorneys do pretty well. The companies cut their losses, but the folks for whom the lawsuit was brought may not do well at all. They may be offered coupons so they can buy more of the product that they're, frankly, having a lawsuit about. So what we're trying to do is say if it's national class action, defendants, plaintiffs throughout the country and if it's of a certain dollar magnitude, a certain number of people involved that maybe it should be involved in a federal court. As it turns out the only study I've seen that indicates what kind of shifting there'll be from state to federal indicates that, at least in a bunch of Northeastern states, most of the class-action litigation will still occur in state courts.

Darren Samuelsohn: Do you think this will limit people's ability to bring lawsuits, for the MTBE issue, the additive that's been leaking into underwater, underground storage tanks? Citizens have brought lawsuits against the makers of MTBE. Will your bill limit their ability to bring those kinds of lawsuits?

Senator Tom Carper: I don't believe so. In fact, we don't have time to really, to have a full airing of all the way that legislature is, but I'll give you maybe two quick examples. If you have, in an instance where, even under a legislation, this is Senator Feinstein's language, you have an instance where two thirds or more of the plaintiffs are from the same state as the defendant then it's automatically in a state court. If even a third of the plaintiffs are from the same state as the defendant there's a good likelihood that it will be in a state court. If you have a situation where, you have like, we'll say like a nursing home that's in one state and the headquarters is in another state, the people that are harmed are in that one state. They can sue in that state even though the company is headquartered or incorporated some other place. So we've tried to provide a reasonable balance. All we're trying to do here is to restore some balance in our legal system so that when little people are harmed by big companies they have a chance to be made whole. But to try to make sure, at the end of the day, that the defendants have a fair shake at protecting themselves and protecting their interests.

Darren Samuelsohn: Let's bring it back to climate change and the air pollution debate again. Your legislation that you introduced last year included support from, as you mentioned, Senator Alexander, Senator Gregg and Senator Chafee, and you also had some utilities behind you as well, from I think the Northeast. I'm wondering, other utilities though are clearly behind Clear Skies. Why are some power plant companies supporting your bill, whereas other companies are behind Clear Skies?

Senator Tom Carper: I served for eight years as governor of Delaware. I spent a lot of time on economic development and frankly, a good deal of time on environmental issues too. One of the things I learned about business is that they don't like high taxes, they don't like a lot of rigid regulation, they don't like it when you won't talk to them or listen to them and they don't like uncertainty. What a number of utilities have come to realize, and other companies that aren't utilities, they're starting to say, "This problem is real." I quoted Stephen Stills yesterday in our hearing about, "Something's happening here, just what it is ain't exactly clear." Something is happening here, something is going on. What some of the utilities are saying is eventually we're going to face this. We're going to be regulated. Now we're being regulated by states with piecemeal approach. Maybe a better approach is to have a uniform federal standard and to have some certainty.

Darren Samuelsohn: What do you say to someone like Senator Inhofe though, who doesn't think that climate change is a real problem and he's in a very powerful position right now in the Environmental Public Works Committee? How do you make the case?

Senator Tom Carper: A couple of ways, one is to hope that he'll be willing to listen to people like the research team that we hired in Delaware a number of years ago. And they were, I don't know whether you've ever had what I call "an aha moment," when I say, "Aha!" Sort of like an epiphany, for me that's what occurred then. And to urge Senator Inhofe to listen to people like that who have good science, good scientific data, good empirical data that says something is going on here and we need to be mindful of that. The other thing is the political reality. In theory, if the administration wanted the bill, and I presume that they do, the way to do it is not to exclude those of us who believe that the carbon is a problem. But try to find a way that regulates it, that doesn't lead to more natural gas and exclude coal entirely, that doesn't, you know, really pump up utilities that people are already paying. But frankly does, in the end, improve the health, I mean the air that we breathe and reduce some of the deaths that are occurring in the folks that are suffering from asthma, especially a bunch of kids.

Colin Sullivan: Does that mean you think we'll see a vote on carbon dioxide caps this year on the Senate floor? I mean there hasn't been a real vote, there was one last year on John McCain's bill, there hasn't been a real vote since the '97 vote on Kyoto. Do you think that we'll see, will there be an opportunity to bring some sort of amendment on carbon dioxide caps to the floor?

Senator Tom Carper: Yeah, if for some reason we're unable to work things out in committee, to come out with a bill that can move a bipartisan support and include carbon, I expect that there'll be an effort on the part of our Republican friends to append the Clear Skies bill to another piece of legislation going through. When that happens, we'll have the opportunity to offer, Senator Jeffords could offer his approach, which is more of a Kyoto approach, and we have our cap-and-trade approach and we call it that centrist third way approach, then we'll have a chance.

Darren Samuelsohn: Let me ask you, the difference between your bill and Jeffords' bill, clearly environmental groups have been pushing for the, for Jeffords' approach. How do you go about, I guess, dealing with the fact that some people think that you could go even stronger then your bill? What do you have to say to that?

Senator Tom Carper: Well I, I believe of course politics is the idea of what's real, what actually, the art of the possible. You've got the administration over here with their approach, it doesn't, it's a three pollutant bill that doesn't do anything on carbon. Frankly, he sort of gets rid of New Source Review. Some would say it's actually worse for the environment than letting current law, current clean air law, just go forward. Over here you've got Senator Jeffords with a very strong approach, which is not as much cap-and-trade, he basically leaves the New Source Review as it is and it's the rigid, the timelines are actually very rigid and stringent. I never liked it when I had to vote against two proposals. I like to be able to vote for something and that was really the impetus for those of us who say, "We need a four pollutant bill that includes carbon. Global warming is real, it's occurring. It's better to deal with it sooner rather than later, at least to start to." We believe in using market forces to help harness the effort to reduce emissions. We don't want to end New Source Review, but we do want to make some changes. So the idea there is to give people like me, who tend to be centrist Democrats and Republicans just something to vote for and I want to get things done. We know clean air is a problem. We know global warming is a problem, at least I do and so do a lot of other scientists and folks who are coming to that conclusion as well.